Products Made and Delivered Outside of the U.S. Were Not “Sold” in the U.S. for Infringement, Even Though Pricing and Contract Negotiations Occurred in the U.S.

Products that were manufactured, shipped and delivered outside of the U.S. were neither offered for sale nor sold in the U.S. for the purpose of proving direct infringement, even though pricing discussions and contract negotiations occurred within the U.S. To be an act of infringement, an offer to sell must contemplate a sale in the U.S. The court additionally affirmed the finding of no willful infringement. The objective prong of the willfulness test was not met where the accused infringer raised substantial question of obviousness (although unsuccessful). Judge O’Malley’s concurrence calls for the full court to reevaluate its standard for imposition of enhanced damages in light of Highmark and Octane and Section 284.